Reformation of unambiguous wills in light of Estate of Duke

In Estate of Duke, 61 Cal. 4th 871 (2015), the California Supreme Court expanded the power of the trial court to admit extrinsic evidence to correct mistakes in wills, a power neither statute nor case law permitted, holding that such intervention was required to avoid unjust enrichment. When decided, there was concern that the court had increased the likelihood of litigation in probate matters, opening the floodgates to spurious challenges to wills that were otherwise unambiguous. In Wilkin v. Nelson, 45 Cal. App. 5th 802 (2020), the 2nd district Court of Appeal has demonstrated that the new authority can be exercised in in a manner both sensible and judicious.

In Duke, the decedent, Irving Duke, handwrote his own will in October of 1984. He left his estate to his wife, Beatrice, and provided that should he and his wife "die at the same moment" the estate was to be equally distributed to the city of Hope and the Jewish National Fund, both charities important to him.

Beatrice died in 2002. After her death, Irving told representatives of the city of Hope that he was leaving his estate entirely to both charities and, in fact, made lifetime gifts against that ultimate distribution. On his death in 2007, his intestate heirs, two nephews, claimed that the estate went to them by intestacy since Irving and Beatrice did not die at the same moment. Although Irving made it clear during his lifetime that he intended his estate to pass to the two charities if his wife did not survive him, his will provided only for the contingency of simultaneous death; it was silent on what happened if he survived his wife. The charities sought to admit the extrinsic evidence of his statements, based on the theory of mistake, to demonstrate his intent.

For centuries, wills have been interpreted in a way that excludes all content, written or oral, outside the four corners of their pages. This is because testamentary disposition requires a time-tested formality to assure reliability. Codified in Probate Code Section 6110, that formality requires a writing and attestation. Extrinsic oral statements lack the quality of a writing, and extrinsic writings generally lack attestation. This doctrine, known as the plain meaning rule, permitted extrinsic evidence to be considered by a court only when an ambiguity was obvious, or "patent," on the face of the will, such as a misdescribed asset. Words or phrases that were not susceptible to more than one meaning were not ambiguous.

In the seminal case of Estate of Russell, 69 Cal. 2d 200 (1968), the California Supreme Court reconsidered the admission of extrinsic evidence in the face of all ambiguities. In Russell, decedent Thelma Russell left her estate in equal shares to Chester H. Quinn and Roxy Russell. Quinn was a friend and tenant of the decedent, but Roxy was an Airedale dog. Unambiguous on its face, the testamentary problem arose only if extrinsic evidence was admitted to show that Roxy was an impermissible beneficiary under California law. The court in Russell set out a new rule for extrinsic evidence, ruling that extrinsic evidence can be offered to demonstrate that an ambiguity, latent or patent, exists in a will. If the court finds such an ambiguity the extrinsic evidence remains to help clarify the intention of the decedent. If the court finds that no ambiguity exists, the extrinsic evidence is excluded.

Unlike ambiguities, however, mistakes of a testator in the drafting of a will historically have not been corrected and extrinsic evidence was not admitted to demonstrate or correct such an error.

In deciding Duke, the Supreme Court rejected this limitation. Because the will was not ambiguous, merely incomplete, there was no issue of construction under Russell to permit admission of extrinsic evidence. Rather, the Supreme Court ruled that extrinsic evidence was admissible to permit a court to reform mistakes in wills, holding: "If a mistake in expression and the testator's actual and specific intent at the time the will was drafted are established by clear and convincing evidence, no policy underlying the statute of wills supports a rule that would ignore the testator's intent and unjustly enrich those who would inherit as a result of a mistake."

In reaching this conclusion, the court drew on what it perceived as an existing trend of liberalizing the statute of wills, including Russell's decision on the admission of extrinsic evidence in cases involving ambiguity, and codification of the substantial compliance rule of Probate Code Section 6110(c)(2), which permits the admission of wills that nearly, but not entirely, satisfy the requirements of a validly attested will.

Probate litigators have watched for the progeny of Duke. While cited approvingly in Placencia v. Strazicich, 42 Cal. App. 5th 730 (2019), that decision did not rely on the principles established in the Duke case for its holding. Reformation of mistake was, however, raised squarely in this year's Wilkin v. Nelson. In Wilkin, William and Hanako Nelson were married in 1981. It was a second marriage for both, and they each had children from prior relationships. What's more, they each had real property that they brought to the marriage that they wanted to pass on to their respective children. In 2000, with the help of one of her sons, Hanako hired attorney Stephen McKee, a certified specialist in estate planning, trust and probate law, to prepare a trust to pass her separate property to her sons when she died, and the evidence presented at trial was clear that she had no intention of disposing of her share of her community property. Nonetheless, along with a trust to hold the separate property and a deed of conveyance, McKee prepared a will that poured over all of the residue of her property, separate and community alike, to that trust.

On Hanako's death in 2016, her son as successor trustee brought a petition on the strength of the will to compel transfer of her half of the community property to the trust, and her husband responded with a challenge to the will, seeking under the two part test of Duke to introduce extrinsic evidence of a mistake and of Hanako's intent that the estate plan was created only to pass separate property.

That evidence was overwhelming. McKee's client interview sheet and all of the statements by Hanako were clear that only separate property was intended, and McKee testified to that effect. Community property was never discussed. The trust stated explicitly that it was intended to hold separate property. No conversation was had with Hanako about a will, and McKee prepared one only from routine. Following a three-day evidentiary hearing, the trial court found that clear and convincing evidence supported equitable reformation of the will to provide for testamentary disposition of Hanako's separate property only.

The Court of Appeal affirmed, stating: "Applying Duke's two-prong standard [clear and convincing evidence both of a mistake and the testator's actual intent], we conclude substantial evidence supports the probate's court's decision to equitably reform the pour-over will....Given the probate court's finding that Hanako intended at the time the trust and pour-over will were drafted to provide for testamentary control and disposition of only her separate property, the decision to reform the pour-over will to conform to that actual and specific intent was well within the court's discretion."

Since Russell, litigants have been entitled to present clear and convincing extrinsic evidence to establish that a will is ambiguous and courts already have experience in dealing with these issues. By setting a similar standard, Duke reversed more than a century of black-letter law in establishing a procedure to do the same in cases of mistake. In so doing, it brushed aside concerns that such a rule would result in increased probate litigation and expense. Five years in, it appears that the additional burden on the courts to date has been relatively small, while still allowing claimants the opportunity to set aside documents that don't express a testator's true intent. 